Guilty Until Proven Innocent

Herman Atkins was sentenced to more than 47 years for
a crime he did not commit. One man's struggle to clear his name after spending a decade in prison.

By Erin Meanley

Published: 2011.07.25 01:49 AM

On the cedar street campus, first-year California Western law student Herman Atkins, 45, is dressed in a full suit, a purple striped tie, and matching pocket square. His peers are wearing flip-flops and hoodies with screen-printed California license plates that read, “XONR8.”

But Herman is twenty years older than his classmates. He wears glasses, has a Bluetooth on his ear, and a briefcase in hand. His voice is soft and steady. At first glance, one might mistake him for an auditor or accountant. His demeanor is anything but that of the bitter, anxious man I might have expected.I wonder if his calmness is innate or if it’s simply the result of having spent his “me” years—his 20s and early 30s—in a concrete cell.

Herman Atkins was born and raised in South Central Los Angeles—gang territory, as he describes it—but the Fremont High School grad played football and baseball and maintained a 3.0 GPA. In 1984, he finished high school and planned to follow in his dad’s footsteps, first going into the military, and then law enforcement. His father was a highway patrol officer.Herman took the Air Force test but his scores could only get him into the Army or Marines—not his first choice. So the recruitment officer told him to wait six months and retake the test. In the interim, he would use graduation money to restore 1960s Chevy low-riders. That’s when, not long after, he ran into trouble.

Herman was outside a machine shop when he and an auto mechanic, whom he had employed to rebuild an engine, were robbed at gunpoint. In defense, the mechanic pulled out a .32, but Herman, not thinking, grabbed the gun from the auto mechanic and chased after the thief. He fired two shots in the air, lost sight of him, and then heard gun shots. When he saw the robber was in a shootout with policemen, who were investigating a nearby car accident, Herman ran the other way. Afterwards, one of the police officers claimed that a bullet had grazed his forehead. Another officer reported a gunshot wound to the chest. And they pinned it on Herman.

Officers came to his mother’s home eight or nine times. Herman says that policemen kicked in his mom’s door, threatening her, saying, “If you don’t tell us where he’s at, we’re going to kill him in the streets.” She hadn’t seen him. “Being fearful of the idea of them trying to kill me, quite naturally, I fled,” Atkins says calmly. “Was that the wisest thing to do? No. If I could turn back the hands of time, I would’ve handled that entirely differently.” Herman was charged with nine counts of attempted murder of police officers and two counts of attempted murder of civilians. One copy of the wanted poster would appear three months later—and 70 miles away—in the wrong hands.

In broad daylight on April 8, 1986, an African American man went into a shoe store in Lake Elsinore, CA. A 22-year-old clerk was alone in the store and got him a pair of shoes. While she was unlacing a shoe for him, he pulled out an automatic handgun and ordered her over to the cash register. He took the money from the drawer and then forced her into the back room. He took her jewelry and the money from her purse. Then, according to the victim, he forced her to perform oral copulation—more than once—until he was able to penetrate her. After the rape, he wiped himself clean with her pink sweater and left it on the floor. When he was gone, she reportedly waited five minutes before going into a neighboring Hallmark store where she called the police. The woman was taken to the hospital and then to the police station.

Danny Miller, a Sheriff’s deputy, gave her yearbooks to look through, since her original description was of someone 15 or 16 years old. She’d said he had a high-pitched voice and when he talked he had little teeth and a lot of gum.In the office at Cal Western, Herman shows me his teeth. Nice-sized chompers, no gum. The victim had also said the rapist didn’t have any scars on his hands.

Herman shows me a long scar on the top of his hand. “Yeah, you would see that. I had that scar since I was 17.”When the victim couldn’t find the assailant’s photo in the yearbooks, Miller took her to a briefing room with Herman’s LAPD wanted flier on the table and then left the room. When Miller came back, she identified Herman as the rapist.

Meanwhile, Herman continued running until he was arrested in Phoenix, AZ, for trespassing in an apartment complex that required individuals to carry an ID. He did not have an ID on him.At the police station, officers put his name into the system and told him that he was wanted for nine counts of attempted murder of police officers, and two counts of attempted murder of civilians. Herman then learned he was also wanted in the county of Riverside for two counts of rape, two counts of forcible oral copulation, and one count of robbery.

Herman was not aware of the rape. In fact, he had never been to Riverside County, and had never even heard of Lake Elsinore, the town where the rape had taken place. He was confident this case of mistaken identity would get sorted out. What worried him, though, were the nine counts of attempted murder, which had not been resolved. He was extradited from Arizona to California.

Herman’s family pooled $15,000 to hire an attorney. It took almost an entire year to get the money and to fight the murder charges, and Herman was in jail that whole time, away from his family, his young wife, and newborn baby. Herman was looking at 16 years per count, and his inexperienced attorney was fearful of losing. The attempted murder charges were reduced to aggravated assault to commit great bodily harm to a peace officer. But Herman was pressured into taking a “deal”: an eight-year prison sentence. He pleaded nolo contendere: “It means ‘I didn’t do it, but you can hold me responsible’ … and that plea came as a result of being pressured from family members … especially my grandmother.” He went to “Chino,” or California Institute for Men in San Bernardino.

During that year, Danny Miller, the Sheriff’s deputy in Riverside County, was busy building a case against Herman. The two had never met, but Miller (according to Herman) had labeled him a “cop killer.” He traveled to L.A. and took various items of Herman’s, like his tennis shoes, which matched the Lake Elsinore rape victim’s description. He said he was going to show them to the victim, and if the assailant didn’t recognize them, then Herman would have nothing to worry about. Still believing in the justice system and trusting an officer of the law, Herman handed over his personal items, saying, “Well, I didn’t do it, so yeah, no problem.” Big problem.

In september of 1988, Herman was pulled out of prison to go to trial for the rape.

The trial was a disaster from start to finish. There were discrepancies in how much money was stolen from the store. The victim’s stolen jewelry was never found. The fingerprint experts couldn’t find any evidence of Herman. According to Herman, the forensic scientists misled the jurors and gave fraudulent reports about the rarity of Herman’s blood type. Deputy Miller proffered a sworn statement from a man who said Herman had gang affiliations, dealt drugs, and had been seen in Lake Elsinore in April of 1986. But the man, whom Herman has never met, did not come to court to testify.

Two witnesses gave inconsistent identifications. (According to innocenceproject.org, 75 percent of DNA-exonerees were convicted because of eyewitness misidentification testimony. Factors like a victim’s stress or feeling pressure, an officer’s leading the victim, whether he means to or not, and poor memory lead to these false identifications. Congress now has a bill pending to reform identification procedures.)

After three weeks on trial, Herman was convicted of two counts of rape, two counts of forcible oral copulation, and one count of robbery. He was re-sentenced so that his original deal went down from eight years to two (“which shows you that the L.A. incident [the atermpted murder charges] was a buncha bullshit,” Herman adds) and he was sentenced to 45 years for “the Riverside situation.” The total was 47 years and eight months. He had just turned 23.

“I was very bitter. Everything that my father had told me about the United States justice system was shattered,” Herman says. Here, he shows a little emotion, weaving in and out of formal, law school speak and the vernacular. “I thought they was a buncha damn crooks. I thought that the law was supposed to protect people and instead, it was victimizing them.”

Herman was first sent to Richard J. Donovan Correctional Facility here in San Diego. In December of 1988, he was sent to Old Folsom. In a level-four maximum-security institution, Herman says, he was hostile and belligerent toward the correction officers. Within the first three years, he “earned a stay” in the SHU Program, the highest-security “Segregated Housing Unit.” He was alone in a cell for 23 hours a day; he had 30 minutes for a shower and 30 minutes for yard.

He could talk to neighbors through vents and by sending “kites”—handwritten notes attached to a string. Herman would send the kite three or four cells down, and when the recipient had replied, he would tug on the string, and Herman would pull it back.While in SHU, he met a man named Taco, who had killed someone and had been incarcerated since the age of 16. Taco had done almost 20 years by the time Herman began talking to him through a vent. Taco told Herman that if his story was true, he needed to behave himself, get back out on “the mainline” where there were libraries, and start fighting for his freedom.

Back on the mainline, Herman began reading history, geography, and law. He asked for books instead of care packages. There were a number of inmates who read books. Herman and these men “would trade books like trading baseball cards and football cards.”One author, Carter Godwin Woodson (see box), particularly moved him. “Woodson made a lot of statements that I carry with me to this very day. He said that the best education that a black man could ever have is the one that he gives to himself. He said that white men wrote everything down in the books, and his belief was: You wanna hide som’n from a nigga, then put it in a book, ‘cause in a book a nigga won’t look. And I took that to heart and I start lookin’ and I start discovering things.”

Inside, Herman ATE what he calls “standard prison food.” Meals were timed and the inmates ate in shifts. “Every day was something different but nothing spectacular. And it got to the point where I had to actually fool myself to eat. You go and get your plate, you get your food from the window, and you only got so much time to eat. I would say a prayer when thankful for what I was able to eat, and then I would say, ‘Mm-mmm, my favorite!’ And that was just to psych myself out to eat.”

Beginning in 1990, Herman “became obsessed with the law and trying to figure out how the hell did Richard Bentley [deputy district attorney in Riverside] and his crew do what they did to me and got away with it,” he says. “It became a daily conversation to anybody who would listen. And I got some great advice from what you call jailhouse attorneys. Some of your best legal minds are in prison right now.”When Herman wasn’t working as an assistant in a drywall vocational class, he would put together a writ of habeas corpus. A man named Benny Hendrix, who was in on a violation, had been watching him from afar. One day, he said to Herman, “Look man, you don’t interact with anybody and you always in these books. What kind of case are you fighting and what issues are you raising?” Herman explained his ordeal and said he was addressing mistaken identity. Benny told him he was going about it all wrong. He said there was an organization in New York called the Innocence Project. He asked if Herman had ever had a DNA test done. He told him no. Benny said, “Well, they specialize in DNA cases, and if you didn’t do [the crime], you can get out of here within a month or so.”DNA testing was the new miracle. Compared with blood-typing—the method that had convicted Herman—it was fiercely accurate and could prove his innocence unequivocally.

Herman sat down and wrote a 13-page letter, front and back, but condensed it to one page and mailed it to New York. Two weeks later, he received a response, asking for him to send transcripts and other documents. Weeks later, the Innocence Project said they were interested in representing Herman.

Herman wrote the letter on December 28, 1993. It took three more years to locate the evidence—the sweater—and two to get it released before they could do the DNA testing. “In prison,” he says, “you learn not to get your hopes up high about anything.” The hunt for the sweater required help from the outside. It was not in the evidence room; the next place to try was the courthouse where Herman was tried and found guilty.

SEE It:

After Innocence The documentary After Innocence (2005) chronicles the lives of several exonerees, including Herman. At the Sundance Film Festival screening of the movie, Herman learned just how devastated his dad, Elmer Clark, was. “Being trained as a law enforcement officer, there’s certain things that you can’t overlook,” Clark says to the camera. “That’s probably something I’m gonna have to live with for the rest of my life, because there was some doubt there, I really did doubt Herman. … I should’ve gone with the love for the child, rather than the evidence.” Today, Herman says, “I think I’ll spend the rest of my life trying to convince him that I don’t hold animosity in my heart towards him.” Watch the documentary instantly on netflix.com.

How You Can Help

In Southern California alone, 1,000 to 2,000 people each year write to the California Innocence Project asking for help. Based on the Cal Western campus, Professor Justin Brooks and his team (about 30 students, including Herman) read through every single case and perform at least some investigation—calling trial lawyers, visiting crime scenes. Other chapters of the Innocence Project will stop looking at any new cases for a year, or only look at DNA cases, but Brooks and his group consider every one. “There are innocent people in every type of case and if I think I can prove it, I’ll take it.” Brooks has had three clients who were exonerated after 20 years. Another was released after more than 30 years. They have freed ten innocent men to date. The volunteer students drive all over the state, so they need gas money. They also require funds to hire experts. And their clients can’t pay. “We survive on donations,” says Brooks. To pitch in, go to californiainnocenceproject.org.

HOW DO INNOCENT PEOPLE END UP IN PRISON?

What percentage of people in prison are innocent?JB: There’s no way to know. But in California, if it’s one percent that means there’s 1,600 innocent people in there. And anyone who believes it’s not one percent is just naïve. Among death cases, in fact, we find higher numbers than one percent. In Chicago, they walked 13 people off death row after finding they were innocent. In the same period of time they executed about the same amount. If you went to death row in Chicago, there was a 50 percent chance you would be executed and a 50 percent chance you would be let go. If you think about it, it’s in death cases that they have the best lawyers, the most procedure, the most media attention, the most anything—so how many wrongful convictions are there in the simple cases?

Why is our system so flawed?JB: In one word: politicians. It’s the most politically affected part of our legal system. You don’t have a lot of politicians saying, “Elect me, and I’ll give us the best commercial shipping laws in the world.” Politicians say, “Elect me, and I’ll be tough on crime.” And to become tough on crime, they pass crazy laws. Look at the “three strikes” law. This is a multi-billion dollar federal and state policy that is based on a baseball analogy. So as a result of that, we’re paying to have people in prison for their entire lives, when studies show that people stop committing crimes after the age of 50. In other countries, you don’t have to keep anyone in prison unless they’re a danger to the community and “life” usually means 20 years. Well in California, we have 80-year-olds pushing brooms around prisons. And the taxpayers—we’re all paying for it. The United States incarcerates a higher percent of its citizens than any country in the world, and we have the biggest prison population in the world. We have the highest recidivism rate, too—70 percent of our inmates are back in prison within three years. So we do a bad job all around.

Are there many job-training or educational programs in place for prisoners?JB: The prisons are so over-crowded they’re not educating people or giving them skills. Politicians are always trying to cut programs in prisons, saying, why should inmates get this? And the answer to that question is: because it’s in our best interest. Because I’d rather the guy gets out and gets a job than comes and steals my car.

Why is it so difficult to get someone exonerated?JB: [After a conviction] the burden of proof is so high. We have to have new evidence that completely undermines the prosecution’s case and points unerringly to innocence. Outside of DNA cases that’s very hard, even if we’re 100 percent sure the person is innocent and we’ve talked to all the witnesses, there’s no way to get the case re-opened. DNA has pointed out that innocent people get convicted and that lots of times the witnesses make mistakes. We even know why they make mistakes. But there are very few cases where DNA is involved—all the same problems exist in those cases, too, it’s just there’s no way to prove it. The old saying is, “It’s not what you know, it’s what you can prove.” It’s frustrating.I think we do a great job at the Innocence Project, but the truth is, if these guys weren’t really determined and wrote to us and tried to get help from everybody, it would be very difficult for them ever to be exonerated. And Herman is an exception because of who he is. The system has done nothing but run over him his whole life. You’d think, Why the hell would he ever want to do anything again except be bitter and angry? Instead he just says, “Nope, I didn’t get myself in this situation but I’m getting myself out.”